The Environmental Protection Agency hearing into seabed mining for phosphate on the Chatham Rise is exposing questions about uncertainty - many big unknowns, including whether the applicant has done its job. If environment groups win this battle, what does it mean for the wider war?

Out on the Chatham Rise, the ridge jutting into the waters off Christchurch and extending out beyond the Chathams, Chatham Rock Phosphate has a mining permit and is now seeking EPA approval for its project to mine phosphate for fertiliser, at depths untried anywhere else in the world.

The Chatham Rise is a Benthic Protected Area. This means that it is recognised as ecologically important, and therefore the fishing method of bottom-trawling is not allowed, because of the disturbance and damage to the seabed and its communities that this would cause.

However ironically - ironically in the case of seabed mining in particular - the area is otherwise open for business, for mining and drilling, subject to approval by the EPA.

Environment groups and others say that Chatham Rock Phosphate's application must now be declined; that this is what the terms of the law, and EPA precedent decisions require. The case is one to watch, not so much because of the outcome in the particular case, although it is important, but because of its wider implications, as decisions start to emerge from EPA processes, new EEZ law settles into place, the EPA is under review – and appears to be working somewhat more effectively than previously suspected in doing exactly what the EEZ Act, anyway, requires: proceeding with caution.

In general the EPA - in spite of some problems with its processes, and arguably the government's best endeavours - is proving far more than a rubber stamp for developers. Five years post-establishment, the Agency is currently under review. Depending on which Act applies in the particular case, the EPA may from time to time make decisions under the Resource Management Act (the RMA), Hazardous Substances and New Organisms legislation (HSNO - which governs, for example, GM applications) as well as offshore oil and mining applications under the new EEZ Act and regulations, done last year.

Recent decisions have included one quashed by the High Court - which would have allowed developers of GM crops to bypass NZ laws, in which the EPA was criticised by the court for failing to act cautiously in the face of uncertainty - and a Supreme Court decision relating to King Salmon's Port Gore aquaculture application in the Marlborough Sounds, in which the Supreme Court clarified an important point about environmental "bottom lines" in the RMA and regional and coastal plans, confirming that bottom lines existed, and couldn’t be traded away.

Since then, the Basin Reserve flyover has been declined (but will be appealed by the applicants); the Ruataniwha dam decision on the fate of Hawkes Bay's Tukituki River and freshwater quality bottom lines is under appeal by environment groups; and Trans Tasman Resources' application for iron sands seabed mining has also been declined. And it is this last decision which is a key precedent for the Chatham Rise.

The Trans Tasman Resources case was the first seabed mining case, and therefore the one most analogous to the one now before the board. Permission was sought to mine iron sands off Raglan and Taranaki. It was declined because, under section 61(2) of the EEZ Act: “If, in relation to making a decision under this Act, the information available is uncertain or inadequate, the EPA must favour caution and environmental protection.”

The decision on the application by Trans Tasman Resources stated that this is an explicit statement that, within the context of the EEZ Act, the taking of risks in the environment is not encouraged, and protection is not to be traded off against the attainment of economic wellbeing.

In other words, the requirement to favour caution and environmental protection in the face of uncertain or inadequate information is an absolute one, and we remind ourselves of section 10(3) which makes it clear that applying the information principles in section 61 is one of the ways the purpose of the EEZ Act [for sustainable management] is achieved.

When that provision went into the EEZ Act, it seemed clear - it seemed a risk - from the drafting, that there was a Ministerial intention to try to evade the internationally-recognised “precautionary principle”, at international environmental law. We (myself and others) argued that it left uncertainty and wiggle-room in interpretation that was undesirable, and that if the government intended the well-understood "precautionary" approach to apply, that was exactly the language that should be used.

Nevertheless, it now seems that whatever wiggle-room might have been intended is clearly insufficient in judicial eyes; and political semantics haven't managed to get around what is a well-established common law environmental management principle, particularly at sea, where NZ's activities are governed by UNCLOS – the United Nations Convention on the Law of the Sea, which NZ has signed, and which gives us the right to exploit the waters and seabed of our EEZ and continental shelf, but subject to the overriding international requirement to protect and preserve it.

Seabed mining, in general, is in its infancy - not just in NZ, but anywhere in the world. We know, in general, very little about what is out there, in our vast exclusive economic zone. And again, the Chatham Rock Phosphate case turns on the extent of inadequate and uncertain information. Green MP Gareth Hughes explains:

In a nutshell this application is for the deepest mining project in the world using mining equipment never used before, to vacuum up the first several meters of the seabed, including bowling ancient coral forests, taking the phosphate out and dumping the rest back – all in the midst of our most productive fishery, in an incredibly sensitive ecosystem, with some parts within a protected area where trawling is off limits. If it goes ahead it would be a world-first experiment in one of the last places we should be gambling with.

The rest of Gareth's blog is worth reading:

Seabed mining is a new field and it is hardly surprising that very little is known about the impacts, or this environment, and more importantly, how it will be affected by mining. The EPA Decision Making Committee themselves have made dozens and dozens of requests to CRP asking for more information. Marine Mammal expert Dr Slooten told the committee there was no adequate baseline research regarding the whales and dolphins resident there but just a list of species was provided. Dr Peake told the committee there was inadequate baseline data regarding the water column and others submitted highlighting the fact there are no guidelines for uranium, which will be mined up with the phosphate nodules, in the marine environment. No one knows what will happen when the mined sediment is dumped back down, how far it will travel, if it will smother and kill species on the seafloor or if new corals will take decades or a hundred years to grow back if at all. The law says if the information available is uncertain or inadequate, the EPA must favour caution and environmental protection and that’s exactly why they ruled against the first seabed mining application to mine ironsands off the Whanganui coast earlier this year.

Seabed mining of this type, let alone at 450 metres depth, has not been tried before, and not by this company or its proposed contractor

The application entails release of uranium and heavy metals back into the marine environment through dumped spoil, and likely uranium build-up in the soil from subsequent phosphate application. For both of these activities uncertainty is high, and adverse impacts largely unknown

Potentially serious impacts on marine mammals (whales and dolphins) and failure by applicant to do its homework: “crucially, and almost unbelievably, the applicant conducted no systematic surveys of marine mammals”. In an area known to be important for marine mammals, including threatened whale species, serious risks are now identified from high levels of underwater noise on their hearing, foraging, navigation and communication

Risks for seabirds. The Chatham Rise is New Zealand’s most important seabird area hosting 52 seabird species including at least 14 albatross species, 11 petrel species, eight shearwater species, five prion species and five storm petrel species. The Chatham Island tāiko (a type of petrel) is of particular concern because, with a population of fewer than 20 breeding pairs, the loss of even one breeding bird could hasten the species’ extinction.

The hearing comes at a time when the EPA is under review. The Environment Ministry's own internal preliminary review has been given to an independent reviewer, whose recommendations will then revert to MFE to recommend what changes will be made.

The EPA is not perfect. Its overall capability has at times seemed doubtful. The processes are rushed, putting applicants at unfair advantage and challenging submitters to assess and respond to evidence in the very short time allowed. Under the previous Minister there were some Ministerial shenanigans around who would be appointed to the decision-making boards, tending to undermine confidence in the independence of the processes.

But nevertheless, in the round - in spite of its imperfections, faults and (in the case of the EEZ) some egregiously weak regulation - the Environmental Protection Agency is doing its job: picking its way through important, highly contested cases where the stakes on both sides are high, with mixed results, but through a combination of the law and careful decisions, backed up by higher courts when needed, the thin green line is managing to hold. The law, in short, is still succeeding in doing its job of regulating and rigorously testing applications, chucking out the worst.

This case, and the Ruataniwha dam appeal, will test whether that conclusion still holds; and pressure may yet come on for further reform.

The Prime Minister has signalled that coming RMA reforms would change the outcome of the Basin Reserve decision, by adding a reference to infrastructure in sections 6 and 7 of the RMA.

For the EPA, or EEZ laws, will Ministerial pressure come on for another round of the search for that elusive 'balance' which requires kicking out a few more struts?

Comments (9)

You need to be a lot more discerning about the real science behind the information you are posting. For example KASM talk about Polonium 210 being a form of Uranium and it bioaccumulating. Really? It is a daughter and its half life is 138 days while its parent is measured in millions of years. And look at the CDC report for natural uranium on its lack of toxicity. http://www.atsdr.cdc.gov/toxprofiles/tp150-c2.pdf

Uranium is a very common substance. If one is worried about it or its daughters, don't go anywhere near Fiordland or the Coromandel. The radon levels there are well above WHO limits.

Gareth and Greenpeace are scarcely more scientifically literate and often deliberate fudge or exaggerate information. They also use a lot of words like could or would or might. We might all get hit by an asteroid tomiorrow but does that mean not to get out of bed? They are not credible or reliable information sources.

What are the threatened whales that are resident there? They are migratory species and appear to avoid noise sources. How many sea birds would be in the say square kilometre of the ocean 200km from land actively being mined? And would Gareth support nodule mining where they do bottom trawling where there is massive seabed disruption and coral destruction. If not, why not?

Oppose seabed mining because of one's belief systems or the real and measurable environmental concerns but don't distort the science into advocacy for support.

firstly I think you need to be a little bit more discerning about to whom you attribute your comments. The information about polonium 210 was not from KASM, rather the evidence given to the Chatham Rise hearing by the EPA's own expert, Dr Ross Jeffree, Adjunct Professor, School of the Environment, University of Technology, Sydney. He seems to have a fair amount of qualifications: he was head of the Marine Radioecology Laboratory (Monaco) of the International Atomic Energy Agency (IAEA) from 2004-2011.

And your qualifications are?

KASM quoted directly from Dr Jeffree's evidence. He told the hearing that Po-210 "would be the relevant radionuclide for consideration of potentially enhanced exposures of humans to radionuclides in seafoods, resulting from its elevated levels in the benthic region of Chatham Rise as a result of CRP’s mining activities."

One of the common problems with both the Trans Tasman Resources and CRP evidence was that neither have done their homework to gather the baseline data required to make an informed decision. This was the EPA's problem with the TTR case and it appears to be proving the same with the CRP hearing, and around Po-210.

Indeed, Dr Jeffree goes on to say that while Po-210 could bio-accumulate up through the food chain through fish, there wasn't enough baseline data provided by the company for the Chatham Rise to say whether this would or would not happen.

But just because you don't know if something could have an impact doesn't mean that you should let it go ahead. This is why, presumably, Dr David Santillo from Greenpeace called for a full investigation by the appropriate radiological authorities into the potential impact, before all this stuff is dug up, sold overseas and spread over New Zealand farmland.

Claire, nearly all aspects of our lives today are based on technology that was once novel and unproven. Someone somewhere had to take a risk or we'd all still be living in caves and have a life expectancy of about 30 years.

So we cannot reasonably expect to take a 'zero risk' approach and there is always 'uncertainty', so I would suggest that the real problem here is a poorly drafted RMA, which has been throttling our development, prosperity and job creation for decades, despite repeated panel-beating.

In the case of say, the Trans Tasman Resources application, what exactly is the risk? Will the sky fall in? Will the tiny patch of seabed included in the application (which I gather is already being bottom trawled) be permanently affected or will the critters living in the sand repopulate once mining in that area is complete? It may take a week or it may take a year. Either way, it's not exactly a catastrophe is it?

Maybe a more reasonable and sensible approach would be to give them the go-ahead to run a pilot operation to see exactly what the impact is.

It was the KASM website you linked to that said Polonium was a form of Uranium.

In Dr Jeffree's evidence, he specifically identified it as progeny or decay products. There is a big difference. He also said the radiation limit for biota was 400micro Grays per hour, but this should be lowered to 10 microGray per Hour for individuals. The higher number was the level at which it was agreed no measurable population effects occur. For the lower number, even under the worst case scenario, dilution of the effluent stream by a factor of greater than 200 would be an acceptable level of risk and wouldn't need more detailed analysis.

Say, Charlie, a pilot programme might just be a little easier to stomach than the current application. Why, for such an unproven, uncertain, lets say experimental venture in a little known environment with legislation based on a precautionary approach (no, not the RMA, the EEZ) would you even bother to apply for consent for thousands of square kilometers at a time for the maximum available period, including large areas where bottom trawling is excluded precisely because of the values those areas hold? Is this not a waste of everybodies time and resources?

If the application was for 100,000 cubic metres in a square kilometer area that had already been disturbed by bottom trawling for a couple of years so they could monitor and understand the effects, I might be more sympathetic (although legislation-wise, it seems Claire is saying even that would be difficult to get through since it would still be hard to know the effects in advance).

No doubt the investments only stack up on a large scale for a long period, but you've got to be able to crawl before you can run into deep water well over your head.

I haven't studied the proposal for the Chatham Rise, but the example I gave - TTR was in square area terms an 8km by 8km patch of sand which has been bottom trawled for decades. Depth was relatively shallow, 20-40m so not technically difficult and any potential downside minimal and temporary. Yet it was rejected by the clearly flawed process currently in place.

Conservation minded folk in NZ need to bear in mind that conservation must be paid for, and that requires economic sustainability.

Maybe that's because some of us value what we've got and want our grandchildren to grow up in a world that's as rich as the one we've got rather than some impoverished one. You can't sustain the economy in the long term without environmental sustainability.

mudfish: I cherish what we've got too. I would go one further and say that with more effort and funding we could do a lot more. But that implies 'sustainable utilisation' of what we've got rather than running the country like a lifestyle block.